UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 21, 2011
EMBASSY BANCORP, INC.
(Exact name of registrant as specified in its charter)
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Pennsylvania
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000-1449794
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26-3339011
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(State or other jurisdiction of incorporation)
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(Commission File Number) Identification No.)
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(IRS Employer
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100 Gateway Drive, Suite 100
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Bethlehem, PA
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18017
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s telephone number, including area code:
(610) 882-8800
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant tor Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 5.02
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Compensatory Arrangements of Certain Officers.
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On November 21, 2011, Embassy Bank for the Lehigh Valley (the “Bank”), the primary operating subsidiary of Embassy Bancorp, Inc., entered into an amendment (the “Amendment”) to each of the supplemental executive retirement plan agreements between the Bank and David M. Lobach, Jr., Chairman, President and Chief Executive Officer, Judith A. Hunsicker, Chief Financial Officer, and James R. Bartholomew, Executive Vice President.
Each of the Amendments clarify that if it were determined that any payment under these agreements are subject to the excise tax imposed by Section 4999 of the Internal Revenue Code, the amounts payable to such executive under his or her agreement will be adjusted upward such that the executive will be in the same after-tax position as if no excise tax had been imposed. Additionally, the Amendments entered into between the Bank and each of Ms. Hunsicker and Mr. Bartholomew provide for an increase in the annual benefit payable thereunder from $150,000 to $165,000, in the case of Ms. Hunsicker, and $85,000 to $95,000, in the case of Mr. Bartholomew.
The foregoing description of the Amendments is qualified in its entirety by reference to the actual Amendments filed herewith as Exhibits 10.1, 10.2, 10.3, and 10.4, which are incorporated herein by reference.
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Item 9.01.
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Financial Statements and Exhibits.
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10.1
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Amendment No. 1 to Supplemental Executive Retirement Plan Agreement between Embassy Bank for the Lehigh Valley and David M. Lobach, Jr., dated November 21, 2011.
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10.2
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Amendment No. 1 to Amended and Restated Supplemental Executive Retirement Plan Agreement between Embassy Bank for the Lehigh Valley and David M. Lobach, Jr., dated November 21, 2011.
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10.3
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Amendment No. 1 to Amended and Restated Supplemental Executive Retirement Plan Agreement between Embassy Bank for the Lehigh Valley and Judith A. Hunsicker, dated November 21, 2011.
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10.4
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Amendment No. 1 to Amended and Restated Supplemental Executive Retirement Plan Agreement between Embassy Bank for the Lehigh Valley and James R. Bartholomew, dated November 21, 2011.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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EMBASSY BANCORP, INC.
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Date: November 23, 2011
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By:
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/s / Judith A. Hunsicker
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Name:
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Judith A. Hunsicker
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Title:
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Senior Executive Vice President,
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Chief Operating and Financial Officer
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EXHIBIT INDEX
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Amendment No. 1 to Supplemental Executive Retirement Plan Agreement between Embassy Bank for the Lehigh Valley and David M. Lobach, Jr., dated November 21, 2011.
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Amendment No. 1 to Amended and Restated Supplemental Executive Retirement Plan Agreement between Embassy Bank for the Lehigh Valley and David M. Lobach, Jr., dated November 21, 2011.
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Amendment No. 1 to Amended and Restated Supplemental Executive Retirement Plan Agreement between Embassy Bank for the Lehigh Valley and Judith A. Hunsicker, dated November 21, 2011.
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Amendment No. 1 to Amended and Restated Supplemental Executive Retirement Plan Agreement between Embassy Bank for the Lehigh Valley and James R. Bartholomew, dated November 21, 2011.
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Exhibit 10.1
AMENDMENT NO. 1 TO
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT
THIS AMENDMENT NO. 1 TO SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT (“Amendment”) is made as of the 21st day of November, 2011, by and between DAVID M. LOBACH, JR. (“Executive”) and EMBASSY BANK FOR THE LEHIGH VALLEY, a Pennsylvania banking institution having its principal office in Bethlehem, Pennsylvania (the “Bank”).
WITNESSETH
WHEREAS
, the Bank and the Executive entered into a Supplemental Executive Retirement Plan Agreement dated November 19, 2010 (the “SERP”), and
WHEREAS
, the Bank and the Executive desire to amend the SERP to provide for gross-up payments for any excise tax on payments to be made by the Bank thereunder consistent with the gross-up language contained in the Executive’s Employment Agreement with the Bank.
NOW, THEREFORE
, in consideration of the mutual covenants and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
1. The SERP is hereby amended to provide that, should the total of all amounts or benefits payable under the SERP, together with any other payments which Executive has a right to receive from the Bank, any affiliates or subsidiaries of the Bank, or any successors of any of the foregoing, result in the imposition of an excise tax under Section 4999 of the Internal Revenue Code (or any successor thereto), Executive shall be entitled to an additional “excise tax” adjustment payment in an amount such that, after the payment of all federal and state income and excise taxes, Executive will be in the same after-tax position as if no excise tax had been imposed. Any payment or benefit which is required to be included under Sections 280G or 4999 of the Internal Revenue Code (or any successor provisions thereto) for purposes of determining whether an excise tax is payable shall be deemed a payment “made to Executive” or a payment “which Executive has a right to receive” for purposes of this provision. The Bank (or its successor) shall be responsible for the costs of calculation of the deductibility of payments and benefits and the excise tax by the Bank’s independent certified accountant and tax counsel and shall notify Executive of the amount of excise tax prior to the time such excise tax is due. If at any time it is determined that the additional “excise tax” adjustment payment previously made to Executive was insufficient to cover the effect of the excise tax, the gross-up payment pursuant to this provision shall be increased to make Executive whole, including an amount to cover the payment of any penalties resulting from any incorrect or late payment of the excise tax resulting from the prior calculation. All amounts required to be paid pursuant to this paragraph shall be paid at the time any withholding may be required (or, if earlier, the time Executive shall be required to pay such amounts) under applicable law, and any additional amounts to which Executive may be entitled shall be paid or reimbursed no later than fifteen (15) days following confirmation of such amount by the Bank’s independent certified accountant provided, however, that any payments to be made under this paragraph shall in all events be made no later than the end of Executive’s taxable year next following the taxable year in which the Executive remits such excise tax payments. The parties recognize that the actual implementation of the provisions of this paragraph are complex and agree to deal with each other in good faith to resolve any questions or disagreements arising hereunder.
2. Capitalized terms used herein, but not defined herein, shall have the meanings assigned to such terms in the SERP.
3. In all other respects, the SERP, as amended above, is hereby ratified and confirmed by the Bank and the Executive. All other provision of the SERP shall remain in full force and effect as amended hereby.
IN WITNESS WHEREOF
, the parties, each intending to be legally bound, have executed this Amendment as of the date, month and year first above written.
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ATTEST:
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EMBASSY BANK FOR THE LEHIGH VALLEY
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/s/ Lynne M. Neel
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By:
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/s/ Judith A. Hunsicker, SEVP CFO
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WITNESS:
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EXECUTIVE
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/s/ Lynne M. Neel
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/s/ David M. Lobach, Jr
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Exhibit 10.2
AMENDMENT NO. 1 TO AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT (“Amendment”) is made as of the 21st day of November, 2011, by and between DAVID M. LOBACH, JR. (“Executive”) and EMBASSY BANK FOR THE LEHIGH VALLEY, a Pennsylvania banking institution having its principal office in Bethlehem, Pennsylvania (the “Bank”).
WITNESSETH
WHEREAS
, the Bank and the Executive entered into an Amended and Restated Supplemental Executive Retirement Plan Agreement dated November 19, 2010 (the “SERP”), and
WHEREAS
, the Bank and the Executive desire to amend the SERP to provide for gross-up payments for any excise tax on payments to be made by the Bank thereunder consistent with the gross-up language contained in Executive’s Employment Agreement with Bank.
NOW, THEREFORE
, in consideration of the mutual covenants and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
1. The SERP is hereby amended to provide that, should the total of all amounts or benefits payable under the SERP, together with any other payments which Executive has a right to receive from the Bank, any affiliates or subsidiaries of the Bank, or any successors of any of the foregoing, result in the imposition of an excise tax under Section 4999 of the Internal Revenue Code (or any successor thereto), Executive shall be entitled to an additional “excise tax” adjustment payment in an amount such that, after the payment of all federal and state income and excise taxes, Executive will be in the same after-tax position as if no excise tax had been imposed. Any payment or benefit which is required to be included under Sections 280G or 4999 of the Internal Revenue Code (or any successor provisions thereto) for purposes of determining whether an excise tax is payable shall be deemed a payment “made to Executive” or a payment “which Executive has a right to receive” for purposes of this provision. The Bank (or its successor) shall be responsible for the costs of calculation of the deductibility of payments and benefits and the excise tax by the Bank’s independent certified accountant and tax counsel and shall notify Executive of the amount of excise tax prior to the time such excise tax is due. If at any time it is determined that the additional “excise tax” adjustment payment previously made to Executive was insufficient to cover the effect of the excise tax, the gross-up payment pursuant to this provision shall be increased to make Executive whole, including an amount to cover the payment of any penalties resulting from any incorrect or late payment of the excise tax resulting from the prior calculation. All amounts required to be paid pursuant to this paragraph shall be paid at the time any withholding may be required (or, if earlier, the time Executive shall be required to pay such amounts) under applicable law, and any additional amounts to which Executive may be entitled shall be paid or reimbursed no later than fifteen (15) days following confirmation of such amount by the Bank’s independent certified accountant provided, however, that any payments to be made under this paragraph shall in all events be made no later than the end of Executive’s taxable year next following the taxable year in which the Executive remits such excise tax payments. The parties recognize that the actual implementation of the provisions of this paragraph are complex and agree to deal with each other in good faith to resolve any questions or disagreements arising hereunder.
2. Capitalized terms used herein, but not defined herein, shall have the meanings assigned to such terms in the SERP.
3. In all other respects, the SERP, as amended above, is hereby ratified and confirmed by the Bank and the Executive. All other provision of the SERP shall remain in full force and effect as amended hereby.
IN WITNESS WHEREOF
, the parties, each intending to be legally bound, have executed this Amendment as of the date, month and year first above written.
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ATTEST:
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EMBASSY BANK FOR THE LEHIGH VALLEY
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/s/ Lynne M. Neel
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By:
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/s/ Judith A. Hunsicker, SEVP CFO
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WITNESS:
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EXECUTIVE
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/s/ Lynne M. Neel
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/s/ David M. Lobach, Jr.
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Exhibit 10.3
AMENDMENT NO. 1 TO AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT (“Amendment”) is made as of the 21st day of November, 2011, by and between JUDITH A. HUNSICKER (“Executive”) and EMBASSY BANK FOR THE LEHIGH VALLEY, a Pennsylvania banking institution having its principal office in Bethlehem, Pennsylvania (the “Bank”).
WITNESSETH
WHEREAS
, the Bank and the Executive entered into an Amended and Restated Supplemental Executive Retirement Plan Agreement dated November 19, 2010 (the “SERP”), and
WHEREAS
, the Bank and the Executive desire to amend the SERP to: (i) increase the amount of the benefit thereunder; and (ii) provide for gross-up payments for any excise tax on payments to be made by the Bank thereunder consistent with the gross-up language contained in Executive’s Employment Agreement with the Bank.
NOW, THEREFORE
, in consideration of the mutual covenants and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
1. Paragraph 1(b) of the SERP is hereby amended to provide that the Normal Retirement Supplemental Pension (as defined in the SERP) shall be equal to $165,000.
2. The SERP is hereby amended to provide that, should the total of all amounts or benefits payable under the SERP, together with any other payments which Executive has a right to receive from the Bank, any affiliates or subsidiaries of the Bank, or any successors of any of the foregoing, result in the imposition of an excise tax under Section 4999 of the Internal Revenue Code (or any successor thereto), Executive shall be entitled to an additional “excise tax” adjustment payment in an amount such that, after the payment of all federal and state income and excise taxes, Executive will be in the same after-tax position as if no excise tax had been imposed. Any payment or benefit which is required to be included under Sections 280G or 4999 of the Internal Revenue Code (or any successor provisions thereto) for purposes of determining whether an excise tax is payable shall be deemed a payment “made to Executive” or a payment “which Executive has a right to receive” for purposes of this provision. The Bank (or its successor) shall be responsible for the costs of calculation of the deductibility of payments and benefits and the excise tax by the Bank’s independent certified accountant and tax counsel and shall notify Executive of the amount of excise tax prior to the time such excise tax is due. If at any time it is determined that the additional “excise tax” adjustment payment previously made to Executive was insufficient to cover the effect of the excise tax, the gross-up payment pursuant to this provision shall be increased to make Executive whole, including an amount to cover the payment of any penalties resulting from any incorrect or late payment of the excise tax resulting from the prior calculation.
All amounts required to be paid pursuant to this paragraph shall be paid at the time any withholding may be required (or, if earlier, the time Executive shall be required to pay such amounts) under applicable law, and any additional amounts to which Executive may be entitled shall be paid or reimbursed no later than fifteen (15) days following confirmation of such amount by the Bank’s independent certified accountant provided, however, that any payments to be made under this paragraph shall in all events be made no later than the end of Executive’s taxable year next following the taxable year in which the Executive remits such excise tax payments. The parties recognize that the actual implementation of the provisions of this paragraph are complex and agree to deal with each other in good faith to resolve any questions or disagreements arising hereunder.
3. Capitalized terms used herein, but not defined herein, shall have the meanings assigned to such terms in the SERP.
4. In all other respects, the SERP, as amended above, is hereby ratified and confirmed by the Bank and the Executive. All other provision of the SERP shall remain in full force and effect as amended hereby.
IN WITNESS WHEREOF
, the parties, each intending to be legally bound, have executed this Amendment as of the date, month and year first above written.
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ATTEST:
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EMBASSY BANK FOR THE LEHIGH VALLEY
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/s/ Lynne M. Neel
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By:
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/s/ David M. Lobach, Jr., Chairman, President & CEO
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WITNESS:
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EXECUTIVE
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/s/ Lynne M. Neel
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/s/ Judith A. Hunsicker
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Exhibit 10.4
AMENDMENT NO. 1 TO AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT (“Amendment”) is made as of the 21st day of November, 2011, by and between JAMES R. BARTHOLOMEW (“Executive”) and EMBASSY BANK FOR THE LEHIGH VALLEY, a Pennsylvania banking institution having its principal office in Bethlehem, Pennsylvania (the “Bank”).
WITNESSETH
WHEREAS
, the Bank and the Executive entered into an Amended and Restated Supplemental Executive Retirement Plan Agreement dated November 19, 2010 (the “SERP”), and
WHEREAS
, the Bank and the Executive desire to amend the SERP to: (i) increase the amount of the benefit thereunder; and (ii) provide for gross-up payments for any excise tax on payments to be made by the Bank thereunder consistent with the gross-up language contained in Executive’s Employment Agreement with the Bank.
NOW, THEREFORE
, in consideration of the mutual covenants and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
1. Paragraph 1(b) of the SERP is hereby amended to provide that the Normal Retirement Supplemental Pension (as defined in the SERP) shall be equal to $95,000.
2. The SERP is hereby amended to provide that, should the total of all amounts or benefits payable under the SERP, together with any other payments which Executive has a right to receive from the Bank, any affiliates or subsidiaries of the Bank, or any successors of any of the foregoing, result in the imposition of an excise tax under Section 4999 of the Internal Revenue Code (or any successor thereto), Executive shall be entitled to an additional “excise tax” adjustment payment in an amount such that, after the payment of all federal and state income and excise taxes, Executive will be in the same after-tax position as if no excise tax had been imposed. Any payment or benefit which is required to be included under Sections 280G or 4999 of the Internal Revenue Code (or any successor provisions thereto) for purposes of determining whether an excise tax is payable shall be deemed a payment “made to Executive” or a payment “which Executive has a right to receive” for purposes of this provision. The Bank (or its successor) shall be responsible for the costs of calculation of the deductibility of payments and benefits and the excise tax by the Bank’s independent certified accountant and tax counsel and shall notify Executive of the amount of excise tax prior to the time such excise tax is due. If at any time it is determined that the additional “excise tax” adjustment payment previously made to Executive was insufficient to cover the effect of the excise tax, the gross-up payment pursuant to this provision shall be increased to make Executive whole, including an amount to cover the payment of any penalties resulting from any incorrect or late payment of the excise tax resulting from the prior calculation.
All amounts required to be paid pursuant to this paragraph shall be paid at the time any withholding may be required (or, if earlier, the time Executive shall be required to pay such amounts) under applicable law, and any additional amounts to which Executive may be entitled shall be paid or reimbursed no later than fifteen (15) days following confirmation of such amount by the Bank’s independent certified accountant provided, however, that any payments to be made under this paragraph shall in all events be made no later than the end of Executive’s taxable year next following the taxable year in which the Executive remits such excise tax payments. The parties recognize that the actual implementation of the provisions of this paragraph are complex and agree to deal with each other in good faith to resolve any questions or disagreements arising hereunder.
3. Capitalized terms used herein, but not defined herein, shall have the meanings assigned to such terms in the SERP.
4. In all other respects, the SERP, as amended above, is hereby ratified and confirmed by the Bank and the Executive. All other provision of the SERP shall remain in full force and effect as amended hereby.
IN WITNESS WHEREOF
, the parties, each intending to be legally bound, have executed this Amendment as of the date, month and year first above written.
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ATTEST:
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EMBASSY BANK FOR THE LEHIGH VALLEY
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/s/ Judith A. Hunsicker
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By:
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/s/ David M. Lobach, Jr., Chairman, President & CEO
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WITNESS:
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EXECUTIVE
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/s/ Judith A. Hunsicker
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/s/ James R. Bartholomew
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